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Court Rules Platforms Can Defend Users’ Free Speech Rights, But Fails to Follow Through on Protections for Anonymous Speech

A decision by a California appeals court on Monday recognized that online platforms can fight for their users’ First Amendment rights, though the decision also potentially makes it easier to unmask anonymous online speakers.

Yelp v. Superior Court grew out of a defamation case brought in 2016 by an accountant who claims that an anonymous Yelp reviewer defamed him and his business. When the accountant subpoenaed Yelp for the identity of the reviewer, Yelp refused and asked the trial court to toss the subpoena on grounds that the First Amendment protected the reviewer’s anonymity.

The trial court ruled that Yelp did not have the right to object on behalf of its users and assert their First Amendment rights. It next ruled that even if Yelp could assert its users’ rights, it would have to comply with the subpoena because the reviewer’s statements were defamatory. It then imposed almost $5,000 in sanctions on Yelp for opposing the subpoena.

The trial court’s decision was wrong and dangerous, as it would have prevented online platforms from standing up for their users’ rights in court. Worse, the sanctions sent a signal that platforms could be punished for doing so. When Yelp appealed the decision earlier this year, EFF filed a brief in support [.pdf].

The good news is that the Fourth Appellate District of the California Court of Appeal heard those concerns and reversed the trial court’s ruling regarding Yelp’s ability – known in legal jargon as “standing” – to assert its users’ First Amendment rights.

In upholding Yelp and other online platforms’ legal standing to defend their users’ anonymous speech, the court correctly recognized that the trial court’s ruling would have a chilling effect on anonymous speech and the platforms that allow it. The court also threw out the sanctions the trial court issued against Yelp.

We applaud Yelp for fighting a bad court decision and standing up for its users in the face of court sanctions.  Although we’re glad that the court affirmed Yelp’s ability to fight for its users’ rights, another part of Monday’s ruling may ultimately make it easier for parties to unmask anonymous speakers.

After finding that Yelp could argue on behalf of its anonymous reviewer, the appeals court agreed with the trial court that Yelp nevertheless had to turn over information about its user on grounds that the review contained defamatory statements about the accountant.

In arriving at this conclusion, the court adopted a test that provides relatively weak protections for anonymous speakers. That test requires that plaintiffs seeking to unmask anonymous speakers make an initial showing that their legal claims have merit and that the platforms provide notice to the anonymous account being targeted by the subpoena. Once those prerequisites are met, the anonymous speaker has to be unmasked.

EFF does not believe that the California court’s test adequately protects the First Amendment rights of anonymous speakers, especially given that other state and federal courts have developed more protective tests. Anonymity is often a shield used by speakers to express controversial or unpopular views that allows the ensuing debate to focus on the substance of the speech rather than the identity of the speaker.

Courts more protective of the First Amendment right to anonymity typically require that before unmasking speakers, plaintiffs must show that they can prove their claims—similar to what they would need to show at a later stage in the case. And even when plaintiffs prove they have a legitimate case, these courts separately balance plaintiffs’ need to unmask the users against those speakers’ First Amendment rights to anonymity.

By not adopting a more protective test, the California court’s decision potentially makes it easier for civil litigants to pierce online speakers’ anonymity, even when their legal grievances aren’t legitimate. This could invite a fresh wave of lawsuits against anonymous speakers that are designed to harass or intimidate anonymous speakers rather than vindicate actual legal grievances.

We hope that we’re wrong about the implications of the court’s ruling and that California courts will take steps to prevent abuse of unmasking subpoenas. In the meantime, online platforms should continue to stand up for their users’ anonymous speech rights and defend them in court when necessary.

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